P L D 1969 Lahore 512 (PLP)

(2) That the learned Additional District Judge had obviously overlooked some relevant and important evidence led by the appellant including document Exh. P. 1, the statements of P. Ws. 2 and 4 as also that of the respondent herself appearing as D. W. 10 on the point of latter's age. (3) That the Courts below had erred in drawing proper inferences from the evidence on record and in particular medical certificate Exh. D. 2 and the statements of D. W. 6 and 11 had been misread giving rise to improper and fallacious inferences.

5. On the contrary, it was contended on behalf of the respondent that the Muslim Family Laws Ordinance, hereinafter called the Ordinance, did not oust the jurisdiction of the civil Courts and the existence of such an ouster by implication was not warranted by any known and established principles of inter pretation; that even otherwise section 8 of the Ordinance referred to "dissolution of marriages otherwise than by talaq" and, as such, this provision could not be attracted to the facts of the instant case in which the suit of the respondent was decreed on ground of repudiation of marriage by exercise of option of puberty; and that it was the appellant himself who dragged the respondent to the civil Court, who was thus constrained to invoke that jurisdiction and for that reason as well the bar created by section 8 would not be attracted.

6. In order to appreciate the merit of the first legal contention raised by the learned counsel for the appellant, it would be necessary to reproduce section 8 of the Ordinance. It reads thus "

8. Where the right to divorce has been duly delegated to the wife and she wishes to exercise that right, or where any of the parties to a marriage wishes to dissolve the marriage otherwise than by talaq the provisions of section 7 shall, mutatis mutandis and so far as applicable, apply." It may be observed that the procedure laid down in section 7 referred to in the above provision briefly is that the husband wishing to divorce his wife shall after the pronouncement of talaq give a notice to the Chairman of his having done so and shall also send a copy thereof to his wife. A contravention of this provision is made punishable with simple imprisonment which may extend to one year or with line which may extend to five thousand rupees or with both. The talaq so pronounced by him shall take effect on the expiration of ninety days from the date of delivery of notice to the Chairman who, within thirty days of the receipt of notice, shall constitute an arbitration council for the purpose of bringing about a reconciliation between the parties. If the wife is pregnant at the time of the pronounce ment of talaq it does not become effective until the expiration of ninety days or delivery whichever be later.

7. It was contended by the learned counsel that in the instant case the respondent having sought dissolution of her marriage on grounds of option of puberty and khula' the expression "wishes to dissolve the marriage otherwise than by talaq" as occurring in section 8 would be attracted with full force to her case, leaving her with no option but to adopt the procedure laid down in section 7 mutatis mutandis. It was next argued that notwithstanding the fact that the ground of khula' was patently hit by section 8 of the Ordinance as found by the trial Court had nonetheless deemed it proper to give a finding on this issue without insisting on the amendment of the plaint. It was asserted that while determining the question of the competency of a suit the plaint as a whole had to be taken into consideration and a suit might well be rendered incompetent simply on account of the inclusion of a single objectionable ground in the plaint, the other grounds being wholly unexceptionable. Reliance was placed in this regard on the provisions contained in Order VI, rules 1, 2, 6 and 17 and Order VII, rule 1 clauses (e) and (g). Rehmat Bibi v. Ramzani (P L D 1967 Lah. 1074) was also cited as an authority in point.

8. Having carefully considered the contention, I am clearly of the view that it has no force and has got to be overruled for more than one reason. In the first instance, there is nothing to indicate in the Muslim Family Laws Ordinance which could be construed as amounting to an ouster, of the jurisdiction of civil Courts. It was not till the 18th of July 1964, when the West Pakistan Family Courts Act, hereinafter called the act, came, into force that under section 5 ibid Jurisdiction of ordinary civil Courts in matters relating, inter alia, to dissolution of marriage and restitution of conjugal rights was taken away and vested exclusively in the Family Courts, established under f section 3 ibid. This conferment of exclusive jurisdiction was of course subject to the provisions of the Muslim Family Laws Ordinance, 1961 as clearly provided in the opening clause of section 5 of the West Pakistan Family Courts Act. If, however, section 8 of the Ordinance were so construed as leading inferentially to the ouster of jurisdiction of civil Courts, the subsequent vesting of exclusive jurisdiction in the Family Courts would be obviously repugnant to such a construction of the provision contained in section 8 of the Ordinance in which case the latter would prevail. The mere fact, therefore, that the Family Courts as constituted under the Act were given the exclusive jurisdiction to try inter alia suits for dissolution of marriage would clearly indicate that the law‑maker had not in view either by express provision or by necessary intendment the ouster of the civil Courts jurisdiction and as such the provision shall have to be given a restricted meaning with its application being confined only to the adoption of the procedure laid down in section 7 of the Ordinance to prevent hasty dissolutions of marriages by affording opportunities to the parties to bring about reconciliation through the good offices of the Arbitration Council. Section 21 of the Family Courts Act offers further guidance in this regard by which the apparent conflict between section 8 of the Family Laws Ordinance and 5 of the Family Courts Act is resolved and the two provisions are so harmonized as to be able to stand together. It reads as follows:‑ "21 (1) Nothing in this Act shall be deemed to affect any of the provisions of the Muslim Family Laws Ordinance, 1961, or the rules framed thereunder; and the provisions of sections 7, 8, 9 and 10 of the said Ordinance shall be applicable to any decree for the dissolution of marriage solemnized under the Muslim Law, maintenance or dower, by a Family Court. (2) Where a Family Court passes a decree for the dissolution of a marriage solemnized under the Muslim Law, the Court shall send by registered post, within seven days of passing such decree, a certified copy of the same to the appropriate Chairman referred to in section 7 of the Muslim Family Laws Ordinance, 1961 and upon receipt of such copy, the Chairman shall proceed, as if he had received an intimation of talaq required to be (given) under the said Ordinance. (3) From the above it would be seen that when a Family Court passes a decree for dissolution of marriage solemnized under the Muslim Law it is placed under a legal obligation to send a copy of the same to the Chairman concerned, who shall then have recourse to the procedure laid down in section 7 of the Muslim Family Laws Ordinance treating the decree as an intimation of talaq. As a necessary corollary from this it would follow that prior to the coming into force of the Family Courts Act, the ordinary civil Court had the jurisdiction to try the suit for dissolution of marriage as there can be no ouster of jurisdiction by implication unless there is an express provision to this effect or one leading to an inference of necessary intendment. I am, therefore clearly of the view that the Court had the jurisdiction to entertain the respondent's suit for dissolution of marriage which was instituted on the 24th of April 1962, before the Constitution of the Family Courts. A question might well arise as to how could the provisions of section 8 of the Ordinance be invoked in such a case. This obviously presents some difficulty and is not easy to answer. With the utmost respect it may be observed that perhaps being conscious of this lacuna, the Legislature in its wisdom enacted section 21 of the Family Courts Ordinance in order to harmonize the two provisions.

9. It was argued on behalf of the respondent that the expression "wishes to dissolve the marriage otherwise than by "talaq" clearly envisaged a case where a marriage was sought to be dissolved by a decree of the Court and did not comprehend within its compass declaratory suit based on repudiation of marriage in exercise of the option of puberty. It was submitted that the distinction between a suit for a declaration and one for dissolution of marriage was patently clear having different implications. In a case where a declaration of dissolution of marriage was sought on ground of Khiarul Balugh, the Court had only to recognize the dissolution of marriage which came into force with effect from the date of the decree, and if in the meantime, the repudiator bad contracted a second marriage it would be perfectly valid. On the contrary, in a case for dissolution of marriage, the marriage stood dissolved on the date when the decree was passed. Reliance was placed in this regard on Muni v. Habib Khan (P L D 1956 Lah. 403). In this authority, B. Z. Kaikaus, J., observed as follows:‑ "Repudiation of marriage by the exercise of option of puberty puts an end to the marriage without the aid of any Court and when the matter comes to Court, the Court does not dissolve the marriage by its own act but recognizes the termination of marriage." It was emphasised that since section 8 refers to dissolution of marriage and not to repudiation, the provision was not applicable to a case of repudiation by Khairul Balugh. The argument on the face of it appears to be quite attractive, but on a closer examination loses much of its charm. In answer to this, it can be argued that the expression "wishes to dissolve the marriage otherwise than by talaq" as occurring in section 8 of the Ordinance is in full accord with the phraseology employed in section 2 of the Dissolution of Muslim Marriages Act of 1939 which reads as follows:‑ "

2. A woman married under Muslim Law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:‑ (i) (ii) (iii) .. (iv) . (v) . (vi) (vii) that she, having been given in marriage by her father or other guardian before she attained the age of (sixteen) years, repudiated the marriage before attaining the age of eighteen years: Provided that the marriage has not been consummated; (viii) . . . : Provided that‑-- (a) no decree shall be .. (b) a decree passed . . . . the said decree. (c) before passing a decree . . . . no decree shall be passed on the said ground. Ground (vii) of the above grounds relates to repudiation of marriage in exercise of the option of puberty. From this ii could be reasonably inferred that notwithstanding the declaratory form of the suit, filed on the basis of Khiarul Balugh, it amounts in effect to seeking a decree for dissolution of marriage and the, date of its being operative or effectual would be immaterial. Further support would be lent to this view by the conferment of exclusive jurisdiction on Family Courts constituted under Act XXXV of 1964 to try inter alia suits for dissolution of marriage. A suit based on the ground of Khiarul Baloogh is essentially one for dissolution of marriage and it cannot be argued with any modicum of reasonableness that ‑the heading "dissolution of marriage" excludes a declaratory suit for dissolution of marriage based on exercise of option of puberty. I am, therefore, inclined to think that the expression used in section 8 also envisages a suit of the latter category. As stated earlier section 21 of the Family Courts Act resolves she conflict between section 8 of the Muslim Family Laws Ordinance and section 5 of the Family Courts Act on points of jurisdiction and procedure.

10. The next argument that the ground of khula' having been concurrently found by the Courts below to be hit by section 8 of the Ordinance, would have inevitably resulted in the respondent being non‑suited, has no force either. No doubt the Courts below had found Issue No. 6 relating to khula' against the respondent on the ground that in order to press into service she should have had recourse to the procedure laid down in section 7 and made an application to the Chairman of the Union Committee concerned. Irrespective of the correctness or otherwise of this finding, I cannot persuade myself ‑to agree with the learned counsel that if one of the several grounds taken for dissolution of marriage in a suit is no competent which again is a question to be determined at the trial, a plaintiff would be non‑suited unless he amends the plaint. If the suit for the dissolution of marriage had been filed by the respondent on the sole ground of khula' which was deemed to have been hit by section 8 of the Muslim Family Laws Ordinance, a preliminary objection to the competency of the suit in that form could have been legitimately taken. But in a case where several grounds are pressed into service including that of Khiarul Balugh which as found earlier is not hit by the provisions contained in section 8 ibid the respondent could not be non‑suited. The authority Rehmat Bibi v. Ramzani relied upon by the learned counsel proceeds, on entirely distinguishable facts and does not advance the case of the appellant. The facts of that case were that the parties were married at Multan but subsequently lived at Bahawalpur which was the ordinary place of residence of the husband. The wife brought a suit for dissolution of marriage on ground of cruelty and on the basis of khula at Multan where the marriage was admittedly contracted. The Civil Judge Multan overruled the objection on the question of jurisdiction and dissolved the marriage of the parties. The learned Additional District Judge, Multan, however, took the view that the civil Courts at Multan had no jurisdiction to try the suit. This judgment was set aside by my learned brother Sardar Muhammad Iqbal, J. in revision. The learned counsel for the appellant relied on the following observation made therein:‑ "A cause of action is the sum total of all those allegations upon which the right to the relief claimed is founded. It includes every fact which it would be necessary to prove, if traversed, in order to enable a plaintiff to sustain his action." But his Lordship went on to observe that:-- "It is, therefore, to be ascertained from the allegations in.: the plaint as to what is the cause of action in each case. In a suit for dissolution of marriage, it has always to be alleged that the plaintiff was the wife of the defendant because unless there is a marriage, there cannot be any dissolution. The factum of marriage, therefore, furnishes a part of the cause of action in such a case and a suit for dissolution is competent at a place where the marriage takes place." Thus the subsequent observation reproduced above clearly militates against the indivisibility of cause of action. Again; if several grounds are available to a plaintiff at the time of the institution of the suit he cannot, under Order II, rule 2, C. P. C., withhold some of them to be pressed in a subsequent suit, in the possible event of the dismissal of the previous suit. The contention is, therefore, devoid of force and is overruled.

11. The finding that a suit for dissolution of marriage brought on ground of Khiar‑ul‑Balugh is not hit by the provision contained in section 8 of the Ordinance making it incumbent on the party seeking dissolution to have recourse to procedure contained in section 7 ibid can be upheld on yet another ground. Having once repudiated the marriage by a proper exercise of her option of puberty a Muslim woman is under no obligation: to wait for the decree of the Court for contracting a second marriage and instances are not wanting where before the matter has come up before the Court the woman has already gone in for a second marriage and has even‑borne children in the subsequent wedlock as is stated to have happened in the instant case. Obviously the object of having recourse to the procedure laid down in section 8 of the Ordinance, namely, to bring about reconciliation having already irretrievably defeated there would be no question of invoking that procedure. Again this view is also in accord with the established principles of interpretation. Obviously, the object of the Muslim Family Laws Ordinance was to discourage avoidable plurality of wives, hasty and impulsive pronouncements of talaq by impetuous and caprious husbands and to liberalise the law in this regard for the estranged spouses, particularly, for the benefit of the weaker sex. If, however, in a case like this where an estranged wife is dragged to the civil Court by a husband seeking restitution of conjugal rights, the construction placed by the learned counsel on section 8 which even otherwise is questionable as discussed earlier, would force the wife to fight on two fronts instead of seeking a declaration in the same Court to which she has been summoned per force. I am, therefore, clearly of the view that the respondent's suit was not hit by section 8 of the Ordinance. The contention is, therefore, overruled.

12. As regards the other contentions alleging by‑passing of evidence and its misreading, giving rise to fallacious inferences, I am definitely of the view that the contentions are absolutely baseless. It was strenuously contended by the learned counsel that in document Exh. P. 1, purporting to be an application filed by the father of the respondent, for the issuance of a ration‑card her age was placed at 18 years which fact was, overlooked by the Courts below. The relevancy and the probative value of this document was duly discussed by the Courts below and it was rightly overruled for the reasons, firstly, that it was not duly proved, as having been thumb‑marked by the respondent's father and, secondly, that although the day and month of its presentation were mentioned on it the year was not known. Similarly, reliance on what appears to be an out‑of the context and isolated answer given by the respondent herself during cross‑examination that she had started having menstruation a couple of months prior to her marriage cannot be construed as taking precedence over the overwhelming evidence to the contrary as emerging from the independent testimony of Muhammad Yasin (D. W. 1), Nikah Khawan, Doctor Abdul Qavi Luqman, who examined her for ascertaining her age and based his opinion (Exh. D. 2) on X‑ray examination, supported by Khuda Bakhsh (D. W. 7), Mehraj Din (D. W. 8) and Zahoor‑ud -Din (D. W. 9) who unanimously stated that she was about 13 or 131 years of age at the time of her marriage, as also asserted by the respondent herself in her examination‑in‑chief. I am, therefore, convinced that all the three legal requirements of the option of puberty, namely, the performance of marriage during minority within the consent of the guardian, its non‑consumma tion, and its repudiation between the age of 16/18 years were fully satisfied. The question being essentially one of fact on which a concurrent finding was given by the two Courts below could not be re‑examined in a second appeal in view of Abdul Majid v. Khalil Ahmad (1), Muhammad Ikhlas v. Muhammad Ismail (P L D 1963 S C 465) and Pathana v. Mst. Wasin and others (P L D 1965 5 S C 114). Again it was particularly emphasised by the learned counsel that the medical certificate Exh. D. 2 bad been misconstrued by the Courts below. Having perused the document, I find myself unable to agree with the learned counsel. Dr. Abdul Qavi Luqman examined the respondent on the 18th of April 1963. He appears to have estimated her age on the basis of ossification verified by X‑ray examination. A perusal of the impugned judgment, in the light of the statements of the doctor who appeared as D. W. 6 and Abdur Rehman (D. W. 11), does not indicate any misreading or mis-appreciation justifying the interference of this Court in a second appeal on the pretext of fallacious inferences.

13. At the time of arguments an application under Order XLI, rule 27, C. P. C. was submitted by the learned counsel for the respondent for taking into consideration an order of the Chairman of the Union Committee, dismissing the respondent's application for dissolution of marriage for want of jurisdiction and directing her to file a suit in the proper forum. This record was actually summoned at the instance of the respondent and though not exhibited is available on the record. There is a reference to these proceedings in the statement of the respondent herself, and that of her father. I would not have hesitated to allow the application, but in view of the fact that the appeal merits dismissal on the other grounds, I disallow the application as unnecessary.

14. In consequence both the appeals fail and are hereby dismissed with costs throughout.

15. A verbal request was made by the learned counsel for the grant of a certificate to file an appeal. In view of the fact that a legal issue of considerable importance is involved, I am inclined to allow the prayer and grant the requisite certificate. K. B. A. Appeal dismissed.